Seneca Nation of Indians v. Christy

• Citation: 126 N.Y. 122,27 N.E. 275
• Parties: SENECA NATION OF INDIANS v. CHRISTY.
• Decision Date: 14 April 1891
• Court: New York Court of Appeals

126 N.Y. 122

27 N.E. 275

SENECA NATION OF INDIANS

v.CHRISTY.

Court of Appeals of New York.

April 14, 1891.

Appeal from supreme court, general term, fifth department.

James C. Strong, for appellant.

Norris Morey, for respondent.

ANDREWS, J.

This is an action of ejectment brought to recover 100 acres of land in the county of Erie. The general facts are undisputed. The land in question is a part of a tract of more than 87,000 acres, or 105 square miles, of land situate in Erie and other counties in the western part of the state, which prior to August 31, 1826, and for a period extending as far back at least as the middle of the seventeenth century, had been in the occupation of the Seneca Nation of Indians, claiming dominion by conquest from other aboriginal tribes. On the day mentioned, (August 31, 1826,) at a public council of the Seneca Nation held at Buffalo Creek, in the county of Erie, a deed was executed by the Indians to Robert Troup, Thomas L. Ogden, and Benjamin W. Regers (known as the ‘Ogden Land Company’) of the 87,000 acres of land to which reference has been made, situated in Erie, Cattaraugus, Allegany, Livingston, Genesee, and Chautauqua counties, in this state. The deed contains a recital that it was executed ‘at a treaty held under the authority of the United States at Buffalo Creek, in the county of Erie, in the state of New York, between the sachems, chiefs, and warriors of the Seneca Nation of Indians on behalf of said nation, and Robert Troup, Thomas L. Ogden, and Benjamin W. Rogers, Esq., of the city of New York, in the presence of Oliver Forward, Esq., commissioner appointed by the United States for holding said treaty, and of Nathaniel Gorham, Esq., superintendent on behalf of the state of Massachusetts.’ It purports, in consideration of the sum of $48,216, acknowledged on the deed to have been in hand paid to the sachems, chiefs, and warriors of the Seneca Nation by the grantees, to grant to the purchasers all the right, title, and interest of the Seneca Nation in and to the lands described, and was executed under the hands and seals of the sachems, chiefs, and warriors (46 in number) of the Seneca Nation, and of the several grantees on the deed, and is witnessed by Jasper Parish, Indian agent, and three other persons, described as interpreters. It was certified and approved by the superintendent appointed on behalf of the state of Massachusetts, and by Oliver Forward, the commissioner of the United States. It is stated in the certificate of the United States commissioner that the deed was executed in his presence by the sachems, chiefs, and warriors of the Seneca Nation, and was fully understood by them, who declared that it was ‘done to their universal satisfaction.’ The deed was proved by one of the subscribing witnesses, was afterwards confirmed by the legislature of Massachusetts, and in 1827 was duly recorded in the several counties in this state in which the lands were situated. In 1827 the sum of $43,050 of the consideration of the deed was deposited by the grantees in the Ontario Bank of Canandaigua, in trust for the Seneca Nation, where it remained from that time until 1855, when it was paid over by the bank into the United States treasury, where it still remains. Meanwhile, from 1827 to the time of the commencement of this suit, a period of nearly 60 years, the interest on this fund has been annually paid to the Seneca Nation, first by the bank, and afterwards by the United States. It does not appear how or when the remainder of the consideration mentioned in the deed was paid, or whether it was paid at all, except as may be inferred from the acknowledgment of payment of the consideration, in full, contained in this deed. The conveyance or treaty of August 31, 1826, was never ratified by the senate of the United States or proclaimed by the president. The extent of the participation of the United States in the transaction may be briefly stated. By the ordinance of August, 1786, the department of Indian affairs was placed under the control of the war department. May 23, 1826, the then secretary of war of the United States, in a letter of that date, directed to ‘Oliver Forward, Commissioner,’ after stating that application had been made to the department ‘by the proprietors of the preemption right to certain lands held by Indians in the state of New York for the sanction of the government to treat with them for the extinguishment of their right to the occupancy of the same, and it being deemed proper that the United States, as the general protector of the Indian tribes, should be present by their commissioner at the treaty which the proprietors propose to hold during the ensuing summer with said Indians for this object,’ informed Mr. Forward that he had been selected by the president for the performance of this duty. The letter proceeded: ‘You are accordingly requested to correspond with the proprietors, and to attend the treaty at such time as may be fixed on by them for holding it, to see that all the proceedings are just and fair. Whatever may be done must be done with the free consent of the Indians. You will, however, exercise a sound discretion in the business, and, if satisfied with the fairness of the propositions of the proprietors, will afford them such co-operation in effecting them as you may judge proper.’

On the 24th of February, 1827, the president of the United States transmitted to the United States senate a copy of the treaty or conveyance of August 31, 1826, together with other papers, including a report from Thomas L. McKenny, superintendent of Indian affairs, relating to said treaty, made to the secretary of war under date of February 16, 1827. In this report the superintendent stated that, ‘in pursuance of law and usage, an agent, in the person of Oliver Forward, was appointed to represent the United States under instructions from the department of war, and to sanction in behalf of the United States the proceedings under said treaty. This trust has been executed.’ The report then referred to the provisions of section 12 of the Indian intercourse law of 1802, and, after quoting the language of the proviso in that section, said: ‘In conclusion, those treaties hitherto made under such circumstances were submitted to the senate, except the treaty with the Senecas of the 3d of September, 1823, executed in presence of Charles Carroll, commissioner, on the part of the United States. It was deemed a useless ceremony, the president approving it only.’ The treaty of September 3, 1823, referred to in the report, was a conveyance substantially like the one in question. Indian Treaties 1837, p. 305. The senate, on receiving the communication from the president, referred the ‘treaty with the Seneca Indians' to the committee on Indian affairs, and afterwards, on its being reported back to the senate, that body refused to ratify it, but the senate passed an explanatory resolution, as follows: ‘Resolved, that, by the refusal of the senate to ratify the treaty with the Seneca Indians, it is not intended to express any disapprobation of the terms of the contract entered into by the individuals who are parties to that contract, but merely to disclaim any power over the subject-matter.’ No further action has been taken by the United States, except that in 1855, in pursuance of the third section of the act of congress approved June 27, 1846, which authorized the president to receive from the Ontario Bank any public stocks or moneys which said bank might hold in trust for the Seneca Indians, the fund of $43,050, above mentioned, was transferred to the United States treasury, and thereafter, as has been stated, interest thereon has been paid annually to the Seneca Indians by the United States.

It is among the agreed facts of the case that soon after the execution of the deed of August 31, 1826, Troup, Ogden, and Rogers entered into full and exclusive possession of the lands embraced in the grant, with the consent of the Seneca Nation; that, in or about the year 1828, a boundary line between the lands conveyed and the remaining lands of the Seneca Nation was surveyed and plainly marked and blazed, which has ever since been recognized by the plaintiff and the successive grantees of Troup, Ogden, and Rogers; that the lands embraced in the grant have been subdivided and sold to purchasers; and that extensive and valuable improvements have been made thereon in reliance upon the title, under the grant of August 31, 1826. Indeed, it is matter of common history that these lands have become the sites of flourishing towns and villages and cultivated farms, and are now the abode of thousands of people, pursuing the avocations of civilized life. There are certain facts antedating the transaction of August 31, 1826, which have an important bearing upon the question in this case. The compact entered into between the states of New York and Massachusetts on the 16th of December, 1786, was the settlement of a controversy which had arisen between the colonies of New York and Massachusetts, which was pending at the time of the Revolution, respecting the right of sovereignty and jurisdiction over a very large territory within the chartered limits of the province of New York, but which was claimed by Massachusetts to be included within the limits of the earlier charter of the colony of Massachusetts Bay. The dispute, still unsettled, was, after the adoption of the articles of confederation, brought by Massachusetts to the attention of congress by petition praying for the appointment of commissioners for the settlement of its claim, in pursuance of the articles of confederation, and congress was proceeding to appoint commissioners when further action on its part was arrested by the appointment by voluntary agreement between the two states of commissioners to adjust the controversy. These commissioners, in behalf of their respective states, entered into the compact referred to. By...